POPLA Appeal for PCN from NTC

Sweetlime

Hi all,

Please could I have some advice, I am currently writing an appeal to POPLA for a PCN given by NTC at a pay & display car park.

[Redacted]

I have butchered various POPLA appeal letters and would greatly appreciate some expert eyes on this. I fear that I have made quite a hash of my frankenstein appeal.


Dear POPLA Assessor,
I am the registered keeper and driver of the vehicle above and I am appealing against the parking charge above. I believe I am not liable for the parking charge on the grounds stated below; I would ask that all points are taken into consideration;

1.0 Relevant Documents

1.1 Notice to Keeper served by Norwich Traffic Company (NTC) on the registered keeper (attached).!

1.2 My appeal to Norwich Traffic Company (NTC) against the parking charge dated 08/08/2014 (attached).

1.3 Letter from Norwich Traffic Company (NTC) my appeal xxxxxxx (attached).

1.4 BPA Ltd Code of Practice - version 3 (not attached)

2.0 Alleged Infringement

2.1 The Respondent alleges that, on 08/08/2014, the driver of a vehicle registration number XXXXX, of which I am the Registered Keeper, was parked at the car park at the Jarrolds St Helens Wharf, Norwich car park in breach of the terms and conditions and as such a Parking Charge of £100 is due.!

2.2 The Notice states that a parking charge has been issued for ‘Parking with an expired ticket’ . This wording clearly indicates that the parking charge represents damages for a breach of the parking contract. Accordingly, the parking charge must be a genuine pre-estimate of loss.

2.3 If the sum is sought as damages for breach of contract then under established contract law it must be shown to be a genuine pre estimate of loss arising from the breach. The Respondent claims that its charges are in line with the BPA Ltd Code of Practice. Whilst the BPA Ltd CoP states that operator must justify in advance any parking charge over £100, it does not automatically follow that any charge which is £100 or under is justified.

2.4 It is my assertion that the £100 parking charge is punitive and unreasonable, exceeds an appropriate amount and has no relationship to the loss that would have been suffered by the Landowner, and is therefore an unenforceable penalty. Furthermore, the Respondent has not provided any evidence as to how and why this parking charge is a genuine pre-estimate of loss.

2.5 The appellant requires NCT to provide a detailed breakdown of how the amount of the charge was calculated. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimates of loss.

2.6 POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such loss.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

3.0 Unreasonable/Unfair Terms

3.1 I would assert that the charge being claimed by NCT is a punitive sum. The following refers:!
Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999':!''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''

Test of fairness:
''A term is unfair if...contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.!

5.1!Unfair terms are not enforceable against the consumer.

9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''

3.2 The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the!Unfair Contract Terms Act 1977!which provides that:!"A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

3.3 I contend it is wholly unreasonable to attempt to profit by charging a disproportionate sum where no loss has been caused by a driver who has proved they paid the perceived tariff of an hourly day rate plus an evening charge and displayed the ticket in good faith. I put NCT to strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

4.0 No contractual authority

4.1 The Respondent has not provided me with any evidence that it is lawfully entitled to demand money from the driver. That is to say, that it has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, it is the properly appointed agent of the landowner or has been properly authorised by the landowner to recover unpaid parking charges from a driver. Accordingly, the Respondent should be required to provide a copy (to both POPLA and myself) of!

4.1.1 Its contract with the owner of the land on which the car park is situated!
4.1.2 Evidence of the land ownership of the party with whom the Respondent has contracted
4.1.3 a “Purchase Order” incorporating this car park into that contract in the event that that contract is a framework agreement within, say, the next fourteen days. In the alternative, if the Respondent is the owner of the land then it should evidence that ownership within the same time period. If the Respondent is unable or unwilling to do so, then it should not be permitted to offer any evidence in this appeal.

4.2 The Appellant reserves the right to provide further representations in this appeal upon considering the evidence that has been requested. It is submitted that without such evidence the Appellants’ position is prejudiced by being unable to properly challenge the Respondents’ position. POPLA is operated by the London Councils under a contract it has with the BPA. As such it will be governed by the Human Rights Act, and in particular Article 6. That article requires that an Appellant must have a real opportunity to present his or her case or challenge the case against them. This will require access to a Respondents’ submissions, procedural equality and generally requires access to evidence relied on by the other party.

5.0 The Appeal

5.1 The parking charge of £100 is punitive. It does not represent a genuine pre-estimate of liquidated damages and is therefore an unlawful penalty charge

5.2 The Respondent has produced insufficient evidence that my car was parked in breach of the stated terms and conditions and which is denied in any event

5.3 The Respondent does not have the necessary contractual authority from the landowner to pursue this parking charge.

6.0 I respectfully request that this appeal be allowed

6.1 In the event that POPLA is minded not to grant the appeal then, because the respondent failed to provide any evidence of its entitlement to recover parking charges until this stage, it is requested that it be ordered that the Respondent be not allowed to recover any more than the originally claimed sum of £

Reg Keeper

Xxxxxxxxxxx 2014


Thank you in advance for any replies I may receive and for your time,

SL

Coupon-mad

Please edit your post above to remove who was driving (we don't need all that detail).


Did you get a windscreen PCN only and appeal that, we assume? Yep? Did you say who was driving? If not then I would wait until close to the end of your POPLA code's shelf life but don't miss the expiry! Check the expiry on the POPLA code checker in post #3 of the Newbies thread at the top of the forum.

Then your appeal can include the fact that the Notice to Driver didn't state the sum of the parking charges which remained unpaid as at the time prior to the PCN being issued. That's a breach of the POFA 2012 Schedule 4 and without fulfilling the second condition they cannot establish any keeper liability.

It's probably also missing the specified period of parking.

And the PPC failed to send a Notice to Keeper.

So you can use a section with those flaws stated and words like this:


As the driver of the vehicle is not identified, the keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with. One of these requirements is the issue of a 'notice to driver' (NTD) followed by a ‘notice to keeper’ (NTK) compliant with certain provisions. In these circumstances, these provisions are found in paragraph 8 of Schedule 4 of the Act. The operator must produce evidence that this has occurred as the liability is not based in the law of contract but is created by the statute.

The NTD does not specify the 'creditor' nor does it specify the unpaid parking charges which 'remained unpaid' (or any amount which was paid) prior to the NTD being given. If zero charges remain unpaid prior to the time of the NTD - in terms of any tariff/unpaid parking charges - then I submit that the NTD still has to follow the mandatory and prescriptive wording of the Schedule. The fact that some or all of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the NTD is compliant. As the NTD is not valid, POPLA should not find that the charge notice is enforceable against me as the registered keeper appellant.

Further, no NTK has been served so there can be no keeper liability at all. The Operator has failed to meet the second condition for keeper liability in Schedule 4.

Sweetlime

Coupon-mad wrote: »

Please edit your post above to remove who was driving (we don't need all that detail).


Did you get a windscreen PCN only and appeal that, we assume? Yep? Did you say who was driving? If not then I would wait until close to the end of your POPLA code's shelf life but don't miss the expiry! Check the expiry on the POPLA code checker in post #3 of the Newbies thread at the top of the forum.

Then your appeal can include the fact that the Notice to Driver didn't state the sum of the parking charges which remained unpaid as at the time prior to the PCN being issued. That's a breach of the POFA 2012 Schedule 4 and without fulfilling the second condition they cannot establish any keeper liability.

It's probably also missing the specified period of parking.

And the PPC failed to send a Notice to Keeper.

So you can use a section with those flaws stated and words like this:


As the driver of the vehicle is not identified, the keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with. One of these requirements is the issue of a 'notice to driver' (NTD) followed by a ‘notice to keeper’ (NTK) compliant with certain provisions. In these circumstances, these provisions are found in paragraph 8 of Schedule 4 of the Act. The operator must produce evidence that this has occurred as the liability is not based in the law of contract but is created by the statute.

The NTD does not specify the 'creditor' nor does it specify the unpaid parking charges which 'remained unpaid' (or any amount which was paid) prior to the NTD being given. If zero charges remain unpaid prior to the time of the NTD - in terms of any tariff/unpaid parking charges - then I submit that the NTD still has to follow the mandatory and prescriptive wording of the Schedule. The fact that some or all of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the NTD is compliant. As the NTD is not valid, POPLA should not find that the charge notice is enforceable against me as the registered keeper appellant.

Further, no NTK has been served so there can be no keeper liability at all. The Operator has failed to meet the second condition for keeper liability in Schedule 4.

Hi,

Thank you so much for taking the time to reply. I wrote my initial appeal to NTC before reading any advice and therefore made it clear in the letter that I was the driver. Therefore I presume I can not quote Keeper Liability in the same way?

Thanks,

SL

Coupon-mad

You are right, you can't. Damn that's a slam dunk winning point not able to be used. Never mind!

I like the way you've written your appeal, it has the main other points. I think the National Childbirth Trust might object to being named in it though!

I would assert that the charge being claimed by NCT is a punitive sum.

I put NCT to strict proof to justify that their charge